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It's Not Over: Pursuing Civil Rights Litigation in Baby Veronica Case

Suzette Brewer

7/23/13

The Cherokee Nation late yesterday filed a petition for a rehearing asking the South Carolina Supreme Court to reconsider its July 17 order that terminated the parental rights of Dusten Brown and ordered an “expedited transfer of custody” to Matt and Melanie Capobianco of James Island. RELATED: Inseparable Sisters: Adoption Order Exacts Toll on Baby Veronica's Family

“It is very troubling that the South Carolina Supreme Court would move to terminate the parental rights of a man who has proven to be nothing but a fit and loving father, without even holding a hearing to determine what is in his own child’s best interests,” said Cherokee Nation Principal Chief Bill John Baker. “What is best for Veronica has not even been considered by the court. We pray the South Carolina Supreme Court grants our request for a due process hearing to determine what is in this child’s best interests.”

Making it clear that the State Supreme Court failed to provide due process and did not properly follow the orders from the U.S. Supreme Court, the Cherokee Nation was also joined by the Native American Rights Fund, the National Congress of American Indians and the National Indian Child Welfare Association to announce their intent to aggressively pursue civil rights litigation in federal court on the girl's behalf to ensure her right to a “best interest determination” hearing before any transfer proceedings. RELATED: Native American Rights Fund: Stop the Forced Removal of Baby Veronica

By terminating the parental rights of Veronica Brown's biological father and ordering transfer of custody without a hearing, the nation's leading American Indian organizations said they are prepared to take whatever steps necessary to ensure that the Indian Child Welfare Act—which is still applicable under federal law—is followed to the letter in Adoptive Couple v. Baby Girl.

“As Executive Director of NARF, I have instructed my legal staff to work with local counsel in South Carolina and Oklahoma to determine our best legal recourse through the federal courts to protect the rights of Baby Veronica,” said John Echohawk. “In this case, we strongly believe that federal civil rights laws are being violated, that other applicable provisions of the Indian Child Welfare Act are being ignored by the state courts, and that the principles underlying treaty and international law protecting the rights of indigenous peoples are being undermined.”

Because Dusten Brown is now on mandatory National Guard training, early on July 17, the Cherokee Nation District Court granted joint legal temporary guardianship over Veronica to her stepmother, Robin Brown, and her paternal grandparents, Tommy and Alice Brown. Five hours later, the South Carolina Supreme Court issued its ruling to terminate Brown's parental rights and return custody of Veronica to the Capobiancos.

Under tribal law Veronica is now under the custodial guardianship of her grandfather, and the tribe argues that as provided for under the Indian Child Welfare Act, Tommy Brown retains the protections of a parent. Further, the Cherokee Nation said that because of its guardianship order, it has exercised its sovereign jurisdiction over Veronica Brown.

Cherokee Nation Assistant Attorney General Chrissi Nimmo said the Court's decision last week was “shocking and surprising” because it did not remand to Family Court for anything other than finalization of the adoption or even address a best interest determination. Nonetheless, the tribe is moving forward and welcomes the support of the national American Indian organizations in ensuring the application of the Indian Child Welfare Act in this case.

“Her rights are being violated,” said Nimmo. “South Carolina state law requires that adoption proceedings must find what is in the best interest of the child. They did not do that.”

If, as anticipated, the court denies a remand for a best interest determination, Nimmo said that it will only make a complicated case “even more complicated.”

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